ACSBlog

In the current political climate, the idea that Congress should pass legislation redistributing wealth and resources is met with abhorrence by conservatives and, often, with apathy by liberals. This was not always the case, argues William Forbath, Associate Dean for Research and Lloyd M. Rentsen Chair in Law at the University of Texas School of Law. At one time, liberals widely viewed economic inequality as a constitutional issue and believed redistributive measures were not only permissible, but constitutionally required to ensure the equal protection of the laws and to promote the general welfare.

In an interview with ACSblog, Forbath explains that today’s liberals have come to think the Constitution does not speak to the redistribution of resources. This contradicts the views of key historical lawmakers who discussed anti-trust, banking, currency and trade as constitutional issues and who viewed Congress as constitutionally obliged to promote the country’s broad economic wellbeing through redistributive policies. Forbath adds that even before the Equal Protection Clause appeared in the federal Constitution, state constitution guarantees of equal protection focused on protecting the poor from legislation that favored economic elites. “The Constitution needs safeguards against oligarchy,” he asserts. “Ours is an anti-oligarchy Constitution.”

Noting America’s shrinking middle class and diminishing equality of opportunity, Forbath concludes that “these older generations were right . . . You can’t keep a constitutional democracy or a republican form of government with boundless inequality. You can’t keep it without a broad middle class. You can’t keep it alongside an oligarchic, entrenched economic elite.” Instead, he promotes a return to the idea that we have a “Constitution of opportunity” ― one that supports a robust middle class and ensures opportunity for all, not just the privileged.

At Vox, German Lopez discusses the disparate disciplinary practices and subconscious racial biases that have disproportionately hurt black students in the school-to-prison pipeline.

SamRosenfeld and Jake Rosenfeld write for The American Prospect about the benefits of public-employee unions and urge liberals to resist the efforts of those who seek to dismantle them.

In The New York Times, Richard Pérez-Peña and Timothy Williams look at the role of video cameras in altering the public’s view of police, quoting Paul Butler, a professor at Georgetown University Law School, who states that footage from these cameras “corroborates what African Americans have been saying for years.”

In The American Prospect, Heather Rogers reports on the dismal earning potential for home caregivers and the need for greater federal assistance to ensure their well-being.

Many people assume that an inevitable consequence of suing someone – or being sued – is a day in court. After all, a trial by jury in most civil cases is a constitutional right under the Seventh Amendment. However, fewer and fewer civil suits are resulting in jury trials—less than one percent of federal civil cases since 2005, down from 5.5 percent in 1962. The trend continues at the state level, where courts have seen a 50 percent drop in jury and bench trials between 1992 and 2005.

In order to study why the civil jury trial is disappearing, plaintiff’s attorney Stephen Susman, a member of the ACS Board of Advisors and former member of the ACS Board of Directors, has partnered with the New York University School of Law to found the Civil Jury Project. Susman, who provided the initial funding for the project and will serve as its executive director, says, “The Project will examine why jury trials in civil cases are rapidly vanishing, whether trial by jury still serves a useful purpose in our complex society, and if so what – if anything – can be done to reverse the trend.”

The first of its kind in the nation, the project was conceived because of Susman’s longstanding commitment to the jury trial right. In light of the proliferation of binding arbitration clauses and other barriers to the courthouse, Susman has repeatedly expressed concerns about the “privatization of the justice system.” While serving as executive director of the Civil Jury Project, Susman will continue practicing law full time and teaching law students how to try cases inexpensively—a vital skill for trial lawyers, considering todays’ skyrocketing litigation costs.

The Project’s inaugural conference will take place on Friday, September 11 in New York. For more information, visit here.

Richard Pérez-Peña writes in The New York Times about the indictment of a white University of Cincinnati police officer who shot and killed Sam DuBose, an unarmed black man.

In The Nation, Ari Berman examines Florida’s botched voter purge leading up to the 2000 presidential election and the wave of voter disenfranchisement that followed.

Mitchell Brown writes at The Brennan Center about continued issues of donor transparency despite recent legal victories in the fight for campaign finance reform.

At Salon, Sophia Tesfaye reports on Rep. Louie Gohmert’s (R-Texas) asinine suggestion for a Survivor-style research study that would place heterosexual and same-sex couples on deserted islands “to prove that homosexual marriage is unnatural.”

by Michael Waterstone, J. Howard Ziemann Fellow and Professor of Law, Loyola Law School Los Angeles

This week is the 25th anniversary of the Americans with Disabilities Act (ADA). The ADA prohibits discrimination on the basis of disability in employment, government programs and services, and privately owned places of accommodation. It was and remains an ambitious law, requiring employers and business owners to make reasonable accommodations, at their own expense, to be more accessible to people with a wide range of disabilities. And although there is still a long way to go, the ADA should be celebrated for its role in moving people with disabilities into the mainstream of society.

Both the ADA and the Americans with Disabilities Amendments Act (passed in 2008) passed with remarkable bipartisan support. Disability has never entered the culture wars, and in many ways disability rights have transcended traditional political commitments. But while legislative political elites in both parties have been very comfortable taking pro-disability rights positions, the public at large is less aware of and sometimes hostile to the ideals and goals of the disability rights movements. Everyone likes and identifies with a feel good story about athletes who “overcome” disability. But how many business owners have welcomed the idea of making physical or programmatic changes to accommodate difference?

Although the ADA has a constitutional basis, it is primarily celebrated as a legislative success. Lawyers and advocates who bring disability law cases are reluctant to engage constitutional law as a source of relief for people with disabilities. And they have good reasons to be wary. The ADA offers ample protections, moving deep into the private sphere in a way constitutional law could not. And the doctrinal resting place of disability constitutional law is a bad one – under Cleburne, government classifications on the basis of disability are only entitled to rational basis scrutiny. Lawyers in the disability rights movement know how to count to five and have reasoned that the Supreme Court is an inhospitable place for equality claims generally.

At this important milestone in the disability rights movement, I want to suggest that the next 25 years should include more of an engagement with disability constitutional law. I take this position for several reasons. First, there is a lot that is unclear, and potentially up for grabs, about equality law. Cases like Windsorand Obergefelldo not fit neatly into conventional tiered Equal Protection Clause analysis, instead looking at some mix of the nature of the interest protected and the legislative classification. Simply accepting that Cleburne closed the constitutional canon on all disability claims does not sufficiently engage these evolving notions of equality.